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Ch. 11
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2000 LAWS OF MARYLAND
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INCIDENTAL DAMAGES UNENFORCEABLE UNLESS THE AGREEMENT EXPRESSLY
MAKES THE DISCLAIMER OR LIMITATION INDEPENDENT OF THE AGREED REMEDY.
(D) CONSEQUENTIAL DAMAGES AND INCIDENTAL DAMAGES MAY BE
EXCLUDED OR LIMITED BY AGREEMENT UNLESS THE EXCLUSION OR LIMITATION IS
UNCONSCIONABLE. EXCLUSION OR LIMITATION OF CONSEQUENTIAL DAMAGES FOR
PERSONAL INJURY IN A CONSUMER CONTRACT FOR A COMPUTER PROGRAM THAT IS
SUBJECT TO THIS TITLE AND IS CONTAINED IN CONSUMER GOODS IS PRIMA FACIE
UNCONSCIONABLE, BUT EXCLUSION OR LIMITATION OF DAMAGES FOR A
COMMERCIAL LOSS IS NOT UNCONSCIONABLE.
21-804. LIQUIDATION OF DAMAGES.
(A) DAMAGES FOR BREACH OF CONTRACT BY EITHER PARTY MAY BE
LIQUIDATED BY AGREEMENT IN AN AMOUNT THAT IS REASONABLE IN LIGHT OF:
(1) THE LOSS ANTICIPATED AT THE TIME OF CONTRACTING;
(2} THE ACTUAL LOSS; OR
(3) THE ACTUAL OR ANTICIPATED DIFFICULTIES OF PROVING LOSS IN
THE EVENT OF BREACH.
(B) IF A TERM LIQUIDATING DAMAGES IS UNENFORCEABLE UNDER THIS
SUBSECTION, THE AGGRIEVED PARTY MAY PURSUE THE REMEDIES PROVIDED IN
THIS TITLE, EXCEPT AS LIMITED BY OTHER TERMS OF THE CONTRACT.
(C) IF A PARTY JUSTIFIABLY WITHHOLDS DELIVERY OF COPIES BECAUSE OF
THE OTHER PARTY'S BREACH OF CONTRACT, THE PARTY IN BREACH IS ENTITLED TO
RESTITUTION FOR ANY AMOUNT BY WHICH THE SUM OF THE PAYMENTS IT MADE
FOR THE COPIES EXCEEDS THE AMOUNT OF THE LIQUIDATED DAMAGES PAYABLE TO
THE AGGRIEVED PARTY IN ACCORDANCE WITH SUBSECTION (A) OF THIS SECTION.
THE RIGHT TO RESTITUTION IS SUBJECT TO OFFSET TO THE EXTENT THAT THE
AGGRIEVED PARTY ESTABLISHES:
(1) A RIGHT TO RECOVER DAMAGES OTHER THAN UNDER SUBSECTION
(A) OF THIS SECTION; AND
(2) THE AMOUNT OR VALUE OF ANY BENEFITS RECEIVED BY THE PARTY
IN BREACH, DIRECTLY OR INDIRECTLY, BY REASON OF THE CONTRACT.
(D) A TERM THAT DOES NOT LIQUIDATE DAMAGES, BUT THAT LIMITS
DAMAGES AVAILABLE TO THE AGGRIEVED PARTY, MUST BE EVALUATED UNDER §
21-803 OF THIS SUBTITLE.
21-805. LIMITATION OF ACTIONS.
(A) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (B) OF THIS SECTION,
AN ACTION FOR BREACH OF CONTRACT MUST BE COMMENCED WITHIN THE LATER
OF FOUR YEARS AFTER THE RIGHT OF ACTION ACCRUES OR ONE YEAR AFTER THE
BREACH WAS OR SHOULD HAVE BEEN DISCOVERED, BUT NOT LATER THAN FIVE
YEARS AFTER THE RIGHT OF ACTION ACCRUES.
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- 134 -
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